A sale conducted without notice to the judgment-debtor and without selling only such portion of the property as is necessary to satisfy the decree is without jurisdiction and can be set aside.

1. This Revision Petition is by the judgment-debtors in O.S. No. 211 of 1973, on the file of Sub Court, Sankari.

2. First respondent herein, as plaintiff filed the above suit for recovery of the amount due on a promissory note. The suit was decreed, and to recover the amount, Execution Petition No. 28 of 1985 was filed. Even though the Execution Petition was for recovery of the principal amount of Rs. 15,000/- and interest thereon, pending Execution Petition itself, petitioners paid Rs. 28,500/-, towards the decree debt. At that time, Execution Petition was pending before Sub Court, Salem. When a new Sub Court was constituted at Sankari, the Execution Petition was transferred to that Court and sale was held on 22-11-1985. On the date of sale, the balance amount payable to the decree-holder as per the Execution Petition was only Rs. 1,887/-. It is the case of the petitioners that they are entitled to the benefit of Act 40 of 1979 and, therefore, the petitioners are liable to pay only the actual principal amount of Rs. 15,000/- and Rs. 7,500/- as interest. Since they have already paid more than that amount, they were under the bona fide belief that they need not pay any amount, and it was their further case that the decree-holder cannot pursue the execution. The entire debt, according to them, was wiped out. It is said that the property was purchased by decree holders brothers son, who is also a member of the joint family. Therefore, the purchase is by the decree-holder himself, though in the name of another member, the same is without sanction of Court and hence invalid. It is further said that the decree-holder filed R.C.A. No. 421 of 1985 for sale of all the properties for the same upset price without notice to the counsel or to the petitioners. It was at that time, the said proceedings were transferred to the Sub Court at Sankari and re-numbered as E.A. No. 7 of 1985. Without notice to the petitioners or their counsel, R.E.A. No. 421 of 1985 was allowed, and the property was directed to be sold. There was no fresh Proclamation. Order 21, Rule 66, C.P.C. has been violated. More than 10 and odd acres of property, the value of which will be more than Rs. 2 lakhs, was sold for a paltry amount. Even if any amount is payable to the decree-holder, the entire property need not be sold. Even if a small portion of the property was sold, the decree debt could have been discharged. The executing Court also did not apply its mind while selling 10 and odd acres. The petitioners came to know about the same only long thereafter. The entire proceedings in execution, i.e., the conduct of sale was fraudulent and void in law. The same is also without jurisdiction. They seek a declaration that the sale is invalid.

3. Both the decree holder as well as the auction-purchaser have filed separate objections, but on the same lines. It is their case that all the proceedings have been taken in accordance with law, and they have not played any fraud either on Court or on the petitioners. It is their further cease that the petitioners have given notice of the R.E.A. 421 of 1985 for fresh sale of the petitioners properties. It is their further case that when the petitioners have received notice of such an application it is their duty to watch the further proceedings. When the proceedings were transferred to Sub Court, Sankari and re-numbered as R.E.A. No. 7 of 1985, the petitioners did not care to file any objection. Therefore, the sale was ordered to take place. The contention that they did not have any opportunity to contest the case is also denied. It is their further case that no fresh notice under O. 21, R. 66, C.P.C. need be issued when the Execution Petition is transferred to another court. Regarding the contention that only a small portion of the property could have been sold to satisfy the decree, the objection is that there is only one item of property and the same could be sold only as one lot. Even if the decree amount is small, the e